• by Wendy Davis  @wendyndavis, March 26, 2023

Siding with book publishers, a federal judge ruled late Friday that the digital library created by the nonprofit Internet Archive is not protected by fair-use principles.

In a 47-page decision, U.S. District Court Judge John Koeltl in the Southern District of New York said the Internet Archive's lending program -- which involves digitizing books and lending the digital versions to consumers -- infringes the publishers' copyright.

“Although [the Internet Archive] has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse,” Koeltl wrote in a decision awarding summary judgment to Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House.

The Internet Archive said Saturday it plans to appeal.

“This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online,” the nonprofit said in a blog post. “It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.”

The ruling came in a battle dating to June of 2020, when the publishers sued the Internet Archive over two different initiatives -- the 12-year-old “controlled lending program,” and the “national emergency library,” which only operated between March of 2020 and that June.

The “controlled lending program” involves loaning one digital copy at a time for each hard copy that has been scanned and digitized.

The emergency program was launched during the initial phases of the COVID-19 pandemic, when libraries across the country shuttered. That short-lived program offered downloads of the same scanned hard copy to multiple users at once.

The publishers contended in their lawsuit that both programs were unlawful, arguing that copyright principles don't allow the Internet Archive to copy and distribute digital book files.

The Internet Archive countered that both programs are protected by fair use. Among other arguments, the Internet Archive said the lending programs were “transformative,” because digital lending is “more efficient” than physical lending.

Koeltl rejected that argument.

“There is nothing transformative about [Internet Archive's] copying and unauthorized lending of the works,” he wrote, adding that the nonprofit isn't copying the books in order to provide criticism or commentary.

The battle drew the attention of numerous outside groups. Organizations including the Authors Guild, National Writers Union, and American Society of Journalists and Authors weighed in on the publishers' side, while more than 300 writers -- including Neil Gaiman, Lemony Snicket and Cory Doctorow -- were among the Internet Archive's supporters.